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The 2D U.S. Circuit Court of Appeals has reinstated an age discrimination lawsuit filed by a 79-year-old former waitress against a now-closed New York deli. Kassner v. 2d Avenue Delicatessen, No. 05-4237-cv. The court said Diane Kassner can sue the Second Avenue Deli and Jacob Lebewohl for “implied claims” of hostile work environment. The circuit court also concluded that Marsha Reiffe, another ex-waitress who was 61 years old when the suit was filed in 2004, can pursue claims that the deli and its owner discriminated against her by assigning her to work at unpopular stations and during slower shifts. Judge George B. Daniels of the U.S. District Court for the Southern District of New York had dismissed all of the claims made by both women, saying they were time barred. The 2d Circuit affirmed his findings in many respects, but, nevertheless, said that he had erred in dismissing some of the allegations. The court remanded those claims to Daniels. Kassner had worked at the deli since 1986. She was such a fixture that she was profiled in The Second Avenue Deli Cookbook: Recipes and Memories from Abe Lebewohl’s Legendary Kitchen. The cookbook was published as a tribute to the deli’s founder, the brother of Jacob Lebewohl, who was murdered in 1996. A Publishers Weekly review said that Abe Lebewohl, a “friend to working people . . . would appreciate the profile of veteran waitress Diane Kassner for her quips.” But Kassner claimed she was told to “drop dead,” “retire early,” “take off all of that make-up,” and “take off your wig” because she was old and because she had filed claims of age discrimination with the Equal Employment Opportunity Commission in December 2002. The circuit court said that Kassner’s hostile work environment claim should have been allowed to proceed to discovery. “To prevail, Kassner will have to persuade the factfinder that . . . the comments . . . were age-related,” Judge Timothy C. Stanceu of the U.S. Court of International Trade, sitting by designation, wrote on behalf of the 2d Circuit panel. “Whether those alleged changes to work stations and work shifts constitute discrimination, retaliation, or both is to be determined as the litigation progresses.” The panel said Daniels also erred in dismissing some of Reiffe’s retaliation claims. And it found he should have considered whether the women had demonstrated “good cause to amend the complaint after the expiration of the deadline in the scheduling order.” The women stated claims under the federal Age Discrimination in Employment Act of 1967, the New York State Human Rights Law and the New York City Human Rights Law. They said Lebewohl retaliated against them and pressured them to retire when they complained about discrimination. They sought injunctive relief, lost earnings and compensatory and punitive damages. In denying their cross-motion to amend the complaint, Daniels said the proposed amended complaint “adds few new factual allegations” and “simply drops any reference to the applicable dates in an attempt to vaguely and generally refer to events without any time reference.” He said that such a proposed amendment “may hide, but cannot cure, any time-barred deficiencies. It therefore would be futile.” But Stanceu said that because the complaint is sufficient to withstand a motion to dismiss, Daniels’ futility analysis rested on an incorrect conclusion of law. Stanceu agreed that “certain acts” alleged in the complaint did not plead causes of action that were timely under the applicable statute of limitations. “Nevertheless, the complaint contains other allegations that, when construed together to draw all reasonable inferences in favor of the plaintiffs, state valid causes of action,” he wrote.

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